Legal Affairs May 2007

Congress Should Censure Gonzales

A vote by Congress to censure Alberto Gonzales would be both constitutional and supported by precedent.
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What's Congress to do when the president insists on keeping an attorney general who is so manifestly unequal to the demands of his job and so incapable of giving accurate answers to simple questions that even the president's partisans want him out?

Impeaching Alberto Gonzales, as some are starting to suggest, would be overkill. It would make no sense to put the nation through the agony of an impeachment trial to get rid of one ineffectual, hopelessly uninformed presidential lapdog. But this does not mean that members are powerless to do anything beyond groaning at a Bush spokeswoman's fantastic claim that Gonzales is "doing a fantastic job" and looking for reasons to skip town to avoid the next installment of his cloddish testimony.

The House or Senate—or, better, both—should adopt a resolution censuring Gonzales, or (as Sen. Charles Schumer, D-N.Y., has suggested) stating its lack of confidence in him.

Although unusual, a vote censuring an executive branch official would be both constitutional and supported by precedent. To be sure, the Republican House leadership argued in December 1998 that it would be unconstitutional to take a floor vote censuring President Clinton. But this was just a pretext for a politically driven determination to deny moderate Republicans any less-drastic alternative to voting for impeachment.

Both houses pass resolutions all the time applauding various flowers, fruits, animals, vegetables, and perhaps minerals. They can censure a senator, a representative, a hurricane, or a ham sandwich if they want. And they have censured high-level executive branch officials in the past. The best-known case was the Whig-controlled Senate's censure of President Andrew Jackson in 1834 for refusing to hand over a document concerning his 1832 veto of a bill to recharter the Bank of the United States. (A newly elected Democratic majority expunged the censure in 1837.) Others who have been censured or denounced include President James Buchanan in 1860; a custom-house collector in 1867; the attorney general in 1886; an ambassador in 1896; and the Navy secretary in 1924.

As Republicans pointed out in 1998, any congressional effort to impose a fine or other penalty on a president or other executive branch official would be an unconstitutional bill of attainder. But a simple censure would be no more than a group exercise in free speech—and no less than a devastating political blow to President Bush's effort to keep his blundering buddy in an office with more power than any other to subvert our constitutional system.

In the words of conservative constitutionalist Bruce Fein, "Congressional oversight includes the authority to censure executive branch officials for maladministration or worse to sharpen political accountability. Censure would enable the American people to choose between President Bush's adamant support of Gonzales and Congress's overwhelming disparagement."

Bush does have one plausible reason for keeping Gonzales: Senate Democrats might refuse to confirm a successor unless and until the president names a special prosecutor to investigate the now-famous firings of eight United States attorneys (and who knows what else)—a bad idea, in my view—or opens up the Justice Department for partisan fishing expeditions.

But unless Bush has something deep and dark to hide, he should welcome any such scenario. He could designate as acting attorney general someone such as Solicitor General Paul Clement, who is highly respected across party lines; send up a nominee who also commands broad respect; cooperate with reasonable Senate demands; and then respond to any Democratic game-playing from a position of strength.

However Bush might react, the tricky thing about drafting a censure resolution would be choosing which of the attorney general's many offenses against the Constitution, good government, tradition, and the truth to include as grounds. Gonzales has been deeply (if perhaps passively) involved in giving his legal blessing to all of President Bush's claims of virtually unlimited presidential war powers and his abuses of those (and other) powers.

These abuses were aptly summarized in a March 20 statement by Fein and three other prominent conservatives—Richard Viguerie, David Keene, and Bob Barr—who have had it with Bush administration depredations on the Constitution. The four called on Congress to legislate an "American Freedom Agenda" to curb the president's claims of authority to "arrest, imprison indefinitely, torture, and transport to foreign dungeons those he deems 'enemy combatants' outside our legal system; tap phones, read e-mails, open mail, and even break and enter without warrants or judicial review; improperly use 'signing statements' to ignore the law; employ secret evidence and evidence obtained by torture; and frustrate proper congressional oversight through excessive claims of national security."

But Congress will never censure Gonzales for his involvement in these sins. Many Republicans sadly support Bush's distended claims of presidential power. And many Democrats shrink from attacking them for fear of being called soft on terrorism.

Similarly, while Congress should aggressively investigate the signs that high-level officials may have pressured U.S. attorneys to use their prosecutorial powers selectively to hurt Democrats and to help Republicans, such complex and disputed allegations might unduly slow down a censure resolution. They could be put on a separate track.

The heart of any censure resolution should be the bipartisan consensus that Gonzales has demonstrated his unfitness for his office by his mishandling of the White-House-instigated firings of the eight U.S. attorneys in December and his fact-mangling testimony about those firings. This consensus arises from undisputed facts in the public record. Not to mention Gonzales's April 19 performance before the Senate Judiciary Committee. He invoked a faulty memory more than 50 times; some of what he did say was "at variance with the facts," in the words of Sen. Arlen Specter, R-Pa.; and the performance as a whole was so lame that it was painful to watch. Bush's applause for this Gonzales testimony was no less lame. But we are stuck with Bush for 20 more months.

On the charitable assumption that Gonzales was not lying, he showed himself—not for the first time, or the second—to be an empty suit, clueless about what his subordinates had been doing in his name. Among other embarrassing admissions, Gonzales testified that he had no idea when he authorized the U.S. attorney firings why the administration was unhappy with two of those let go.

Indeed, a recent revelation by Murray Waas on nationaljournal.com suggests that a secret March 2006 order actually formalized the attorney general's cluelessness about how White-House-connected political operatives were running important aspects of the 110,000-employee department.

The order gave broad authority to hire and fire some 135 Justice Department political appointees—excepting only those subject to Senate confirmation—to Gonzales's relatively young and inexperienced chief of staff and White House liaison. This was the same period during which Kyle Sampson, the chief of staff, who was a former assistant White House counsel, and Monica Goodling, the White House liaison, who was a former opposition researcher for the Republican National Committee, were working with the White House on plans for firing various Senate-confirmed U.S. attorneys.

Paul McNulty, the far more experienced and seasoned deputy attorney general, was deliberately kept in the dark about some of these activities. And it was only after the department's Office of Legal Counsel warned that an early draft of the March 2006 order might be an unconstitutional delegation of authority that it was revised to require final approval by the attorney general for his subordinates' decisions affecting these 135 politically appointed positions.

Sampson and Goodling resigned earlier this year amid criticisms casting them as part of a White House plan to install "loyal Bushies" (in the words of a Sampson memo) in sensitive prosecutorial and other positions throughout the Justice Department. And on May 2, the department disclosed that its two internal watchdog units are investigating whether Goodling sought to import political affiliation into the hiring process for entry-level prosecutors in U.S. attorney's offices throughout the country.

A resolution censuring Gonzales could include a compendium of such episodes plus a catalog of the multiple contradictions between established facts and his own testimony and statements to the media.

Of course, even if such a resolution were to finally force Bush to dump Gonzales, it could not require him to choose a successor worthy of the job. But the president is so weak politically, and the supply of plausible nominees with "loyal Bushie" credentials is so small, that he might be forced to choose a person of stature, such as Securities and Exchange Commission Chairman Christopher Cox. After all, Bush did replace the hapless Harriet Miers as White House counsel with Washington wise man Fred Fielding, and the discredited Donald Rumsfeld as Defense secretary with Robert Gates.

Other signs are not encouraging, however. In response to suggestions that Cox would be a good nominee, for example, an unidentified White House source told The Washington Times: "Cox has been a disappointment at the SEC." The reason? "He's shown too much of a willingness to work with the Democratic members of the commission."

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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